Justice Kennedy: The Highly Influential Man in the Middle
Sunday, May 13, 2007
It is easy to define Justice Anthony M. Kennedy's role on the Supreme Court this term, and difficult to exaggerate his importance.
To borrow President Bush's self-description, he's "The Decider."
He is the only justice to be in the majority in each of the term's unusually high number of 5 to 4 decisions. At this midpoint of the court's rulings, he has been on the losing side in only two of the 40 opinions issued.
Because the court so far has shown itself to be strikingly -- and evenly -- divided on ideological issues, Kennedy holds enormous power in pivoting between the left and right, legal experts say. He stands alone in the middle -- and that enhances his importance.
"There's nowhere else to go" when each side looks for a majority-clinching fifth vote, said Lee Epstein, a professor at the Northwestern University School of Law and an expert on the court's voting patterns. "There is this giant hurdle called Kennedy."
The label of "swing vote" is one that justices often shun. For some, it connotes a wobbly judicial philosophy rather than a propensity for moderation. For years, Justice Sandra Day O'Connor was seen as the court's pivotal vote, a role sometimes shared with Kennedy.
But while O'Connor had a reputation for deciding only as much as needed for the case at hand, Kennedy has used the platform for bold and often controversial pronouncements. "I think it's fair to say Justice Kennedy tends to write broadly, as opposed to O'Connor," said George Washington University law professor Orin Kerr, a former Kennedy clerk.
This term, for instance, writing the majority opinion upholding the federal Partial Birth Abortion Ban Act, Kennedy staked out new ground in addressing the morality of the abortion procedure and the "regret" many women who have had abortions feel -- although he acknowledged there was "no reliable data to measure the phenomenon."
The outrage from abortion rights activists to what they called Kennedy's paternalistic point of view recalled conservative outrage at the grandiloquent language Kennedy employed 15 years ago when he voted with the other side to uphold the right to abortion established in Roe v. Wade.
"One of the things so striking about the (abortion) decision is his self-assuredness," said Stanford University law professor Pamela Karlan, noting that Kennedy wrote that another finding was "self-evident."
On the abortion decision, Kennedy sided with the conservatives. In the court's first-ever consideration of global warming, he joined with the liberals to rebuke the Bush administration on regulating greenhouse gases.
Kennedy has been the pivotal vote on every death penalty case decided by the court this year. He holds the key to whether the court considers once again the rights of detainees at Guantanamo Bay, Cuba.